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Article 50 - The Decision

The decision on the 'triggering' of Article 50 was given on 3 November when the High Court delivered its judgment in the case of R (Miller & Santos) v Secretary of State for Exiting the European Union, a matter brought by a number of claimants and interested parties:

...we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

The Government intends to appeal against the judgment and the matter will be expedited to a hearing of the full Supreme Court at a four-day hearing in early December.

The judgment has created a storm that will be played out over the weeks and months to come but so far as legal issues are concerned, there has clearly been much misunderstanding about what the Court was asked to adjudicate about and the role of the Court in the UK’s constitution. The decision may have come as something of a surprise to some, but not to many lawyers, constitutional law experts, academics and indeed, many politicians.

The Court set out the question it was being asked to decide, namely whether:

“…as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament.”

The Court was therefore not being asked to overturn the outcome of the Referendum held on 23 June. It was being asked whether the Government could use its ancient prerogative powers to ‘pull the Article 50 trigger’, or whether only Parliament can do this.

The Court said: “The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses…..the Crown – i.e. Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament.”

The Court explained that prerogative powers are the ancient powers remaining in the hands of the Crown and that primary legislation cannot be displaced by prerogative powers. The Government lawyers did not disagree with this.

The Government’s case was described as follows: “…normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers.”

The Court noted: ‘that general rule exists because such powers have no effect on domestic law.’

The Government also contended: “Parliament must have intended when it enacted the 1972 Act that the Crown would retain its prerogative to effect a withdrawal and hence the Crown should have the power to choose whether EU law should continue to have effect in the domestic law in the UK or not.”

The 1972 act is a reference to the European Communities Act 1972.

The Court was not persuaded by the Government’s argument and stated: “The Court does not accept the argument put forward by the Government.

There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers…

…we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.”

Criticism of the decision has touched on Judges allegedly getting embroiled in politics or that the Court had no business in deciding this issue. However, the Court specifically made plain that it cannot engage in the politics of the Referendum results and expressly stated: “The court is not concerned with and does not express any views about the merits of leaving the European Union: this is a political issue.”

Further it was accepted by all parties that this was matter for the Court: “It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution it one for the court to decide. It turns on the extent of the Crown’s powers under its prerogative. The Government accepts that neither the European Union referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50.”

We will update further on this matter when the Appeal is decided. Judgment is currently expected in early January.